Eversole v. Eversole

Supreme Court of Georgia

February 27, 2017

EVERSOLEv.EVERSOLE.

Benham, Justice.

This
case involves a divorce proceeding. In January 2015, Janice
Denise Eversole ("Wife") filed a divorce action
against Jay Wade Eversole ("Husband") seeking,
among other things, an award of alimony, child custody, and
child support. Wife alleged Husband had left the marital home
in Georgia less than six months prior to the filing of the
complaint and was living at a stated address in South
Carolina. With respect to personal jurisdiction over Husband
for the award of alimony and child support, Wife alleged
Husband was subject to the jurisdiction of the court pursuant
to the Georgia Long Arm Statute, OCGA § 9-10-91 (5).
When Wife was unable to perfect personal service on Husband,
the trial court granted her motion for service by
publication. Husband failed to file a timely answer, and a
hearing in the matter was conducted on July 13, 2015, at
which Husband failed to appear.[1]

After
the hearing but before the trial court entered an order
granting the divorce and other relief sought by Wife, Husband
filed a late answer in which he admitted jurisdiction as
pleaded in the complaint and admitted the marriage was
irretrievably broken. He raised no objection to sufficiency
of service. Husband denied other allegations of the complaint
and sought custody of the parties' minor child, along
with an award of child support, and sought alimony from Wife.
Nevertheless, the trial court entered the final judgment and
decree of divorce on August 21, 2015, which it dated nunc pro
tunc to July 13, 2015, the date the hearing was conducted. In
this order, the trial court awarded child custody to Wife,
and also awarded, among other things, child support, alimony,
and attorney fees and costs. Husband then filed a motion to
set aside the judgment on two grounds: (1) that although he
was served by publication he never received personal service
or service by mail, and (2) that the trial court lacked
personal jurisdiction because he was a resident of South
Carolina. The trial court granted Husband's motion in
part and set aside its award of alimony, child support, and
attorney fees and costs because it found it lacked personal
jurisdiction over Husband to make these awards. The trial
court did not set aside the grant of divorce, the division of
personal property located in Georgia, the award of real
property located in Georgia, or the child custody award,
since it concluded personal jurisdiction was not required for
those decisions. Wife filed an application for discretionary
appeal which this Court granted in an order directing the
parties to address whether the trial court erred in
concluding it did not have personal jurisdiction over Husband
pursuant to OCGA § 9-10-91 (5).

1. (a)
Wife asserts the trial court erred when it concluded it
lacked personal jurisdiction over Husband for purposes of
awarding alimony, child support, and attorney fees and costs.
Personal jurisdiction over certain nonresidents for
proceedings involving these issues is granted by
Georgia's Long Arm Statute, OCGA § 9-10-91 (5). In
the final judgment and decree, the trial court concluded from
the evidence that Husband was subject to long arm
jurisdiction in this matter. Husband's motion to set
aside, and the hearing conducted on the motion, focused on
whether Wife had properly satisfied the requirements of
service by publication so as to confer jurisdiction over
Husband. Yet, the order granting Husband's motion to set
aside erroneously concludes that service by publication, even
if perfected, would not confer personal jurisdiction over
Husband in this case because he was not a Georgia resident.
This holding ignores the express provisions of subsection (5)
of the Long Arm Statute (which, as noted, the trial court
appeared to recognize in the final judgment and decree) that
a court of this state may exercise personal jurisdiction over
any nonresident, in the same manner as if he were a resident
of the state,

[w]ith respect to proceedings for alimony, child support, or
division of property in connection with an action for divorce
or with respect to an independent action for support of
dependents, [if he] maintains a matrimonial domicile in this
state at the time of the commencement of this action or, if
the defendant resided in this state preceding the
commencement of the action, whether cohabiting during that
time or not.

OCGA § 9-10-91 (5). See also OCGA § 9-11-4 (f) (1)
(A) (authorizing service by publication on persons residing
outside Georgia, including in divorce actions). It is
undisputed that Husband met these requirements by residing in
Georgia prior to the commencement of the action. Accordingly,
the trial court erred by disregarding the Long Arm Statute
and ruling that service by publication would not confer
jurisdiction over Husband in this case.

(b)
With respect to service of process, it is also undisputed
that, despite Wife's diligent efforts, Husband was never
personally served. Husband asserts he was not properly served
even by publication, since he never received a mailed copy of
the publication notice and other service papers from the
clerk of the trial court. While significant undisputed
evidence exists that Husband had actual notice of the
pendency of the complaint and what was at issue in the
proceeding, the most important fact is that Husband waived
his objection to insufficiency of service.

Husband
made an appearance in the case when he filed his untimely
answer in which he not only failed to raise an objection to
personal jurisdiction or service of process, he actually
admitted personal jurisdiction and sought relief in his favor
in the divorce proceeding. In its order granting
Husband's motion to set aside, the trial court
disregarded this admission and held that Husband did not
submit to the jurisdiction of the court by filing an answer
after the date to which the final order was back-dated. The
trial court concluded that the nunc pro tunc order completed
the record as of the date to which it related back. While a
back-dated order may be used in a divorce action to perfect
the record to reflect accurately the date the order became
final and effective as between the parties, [2] the entry of such
an order does not require or even permit a court to ignore
admissions or waivers, at least jurisdictional ones, made in
a pleading filed by a party to the action prior to the actual
date the final order was executed. This is because
insufficiency of process is a defense that must be asserted
in a party's first responsive pleading or a motion made
at or before the time the responsive pleading is filed. See
OCGA § 9-11-12 (b) (4). Even if untimely, an answer that
admits jurisdiction and waives sufficiency of service of
process serves to waive these defenses. See Merry v.
Robinson, 313 Ga.App. 321 (1) (721 S.E.2d 567) (2011).
In Merry, as here, the answer that failed to raise a
defense set forth in OCGA § 9-11-12 (b) was filed after
the filing deadline but prior to the date the judgment was
entered. Likewise, in this case final judgment had not been
executed or entered at the time Husband filed his responsive
pleading, even though the judgment was later executed and
back-dated. The trial court erred in granting, part,
Husband's motion to set aside because he was bound by his
admission of jurisdiction and waiver of the defense of
insufficiency of service.

2.
Because we reverse in part the order granting Husband's
motion to set aside the divorce judgment, Wife's
remaining enumerations of error are moot and need not be
addressed.

Judgment
affirmed in part and reversed in part. All the Justices
concur.

---------

Notes:

[1] Pursuant to OCGA § 9-11-40 (a),
in a divorce case involving service by publication, the case
is triable any time after 60 days from the date of the first
publication of notice. Here, according to the clerk's
certificate as to publication, the notice was first published
on ...

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